After serving sixteen terms as an Associate Justice of the United States Supreme Court, Clarence Thomas continues to attract extensive journalistic and scholarly attention. Numerous books and articles have been written about him, including studies focusing on his biography, the controversy over his nomination and confirmation, and his performance on the high court (Phelps and Winternitz 1993; Danforth 1994; Mayer and Abramson 1994; Flax 1998; Gerber 1999; Smith and Baugh 2000; Thomas 2001; Marcosson 2002; Foskett 2004). Two books published in 2007 add to this literature and attempt to comprehensively analyze Thomas “the man” and Thomas “the justice.” In SUPREME DISCOMFORT: THE DIVIDED SOUL OF CLARENCE THOMAS, Washington Post staff writers Kevin Merida and Michael A. Fletcher drew upon hundreds of interviews with the justice’s friends, colleagues, and relatives, along with other sources, to try to reconcile his life today with his impoverished beginnings in the Jim Crow south. Merida and Fletcher are less concerned with his Supreme Court record, but this is precisely the focus of Henry Mark Holzer’s THE SUPREME COURT OPINIONS OF CLARENCE THOMAS, 1991-2006: A CONSERVATIVE’S PERSPECTIVE.

In the introduction, Professor Holzer accuses members of the “professional and academic legal community” of engaging in a “professional character assassination” of Thomas’ record and pledges to set the record straight. Holzer’s goal is to present Thomas in his own words by examining all of his Supreme Court opinions, which he says “reveal him as a thoughtful conservative who understands the role of a Supreme Court justice, the methodology of proper constitutional and statutory adjudication, and the appropriate resolution of the many issues that have come to the Court during his tenure” (p.2). He describes Thomas as a “judicial conservative’s conservative,” whose jurisprudence is based on his commitment to “originalist interpretation of the Constitution and federal statues, to the Constitution’s structural pillars of federalism and separation of powers, and to judicial restraint” (p.2). Holzer then describes the concept of originalism, emphasizing former Attorney General Edwin Meese’s characterization of the term in speeches given at meetings of the American Bar Association and the Federalist Society in 1985. Holzer’s positive assessment of originalism as the most appropriate means of constitutional adjudication is contrasted with a highly critical discussion of the concept of a living Constitution as espoused by Justice William Brennan. According to Holzer, [*563] the living Constitution is a central tenet of liberal jurisprudence that is “an anti-democratic and intellectually dishonest way to interpret our Constitution and federal statutes” (p.8). He reserves particular scorn for Justice William O. Douglas’s opinion in GRISWOLD v. CONNECTICUT (1965), in which the Court established a constitutional right of privacy. Ironically, in criticizing the living Constitution approach to constitutional interpretation, Holzer’s language mimics that of some of Thomas’ critics, whom he castigates for their derogatory comments about the justice. He refers to Brennan as the living Constitution’s “high priest” and to Douglas’s GRISWOLD opinion as “pretentious mumbo-jumbo.” This sarcastic tone appears in later chapters as well.

Following the introduction, the book is divided into eight chapters, a very brief conclusion, extensive chapter notes, and two appendices. The first appendix contains a helpful alphabetical list of all of Thomas’s opinions and identifies them as majority, concurring or dissenting, while the other lists his opinions in statutory interpretation cases, with brief quotations from some. Chapters 1 and 2, which collectively amount to fourteen pages, could have been profitably combined into one. In Chapter 1, Holzer provides a brief synopsis of the background and creation of the Declaration of Independence, the Constitution, and the struggle for its ratification. He points to the opening words of the Declaration of Independence as having a strong influence on Thomas’s constitutional jurisprudence. Chapter 2 lists and describes the Bill of Rights, with particular emphasis on the Tenth Amendment. In this chapter, Holzer attacks the Court’s incorporation of various provisions of the Bill of Rights, insisting that framers of the original Constitution would have “scoffed” at the idea. He criticized the use of the Fourteenth Amendment’s Due Process Clause to extend various rights against state violations, declaring there to be no historical justification for it.

Chapters 3, 4, and 5 focus on what Holzer calls the three pillars of American constitutionalism as outlined by Edward S. Corwin: separation of powers, federalism, and judicial review. He begins Chapter 3 with James Madison’s characterization of separation of powers as “a first principle of free government” and favorably compares Thomas’ vision with that of Madison’s. The bulk of the chapter is devoted to praising Thomas’ opinions in HAMDI v. RUMSFELD (2004) and HAMDAN v. RUMSFELD (2006), concerning the power of the executive branch in detaining enemy combatants. He writes approvingly of Thomas’ willingness to accord the president extensive powers on matters of war and national security. Not only does Holzer praise Thomas “as the one who understands and seeks to preserve the necessary war powers of a president and the principle of separation of powers,” he also upbraids the majority justices in HAMDAN for “violat[ing] their oaths to faithfully . . . discharge and perform their duties . . . under the Constitution” (p.35).

In examining Thomas’s views on federalism, Holzer turns to his opinions [*564] in cases involving the Tenth Amendment, the Commerce Clause, and the Necessary and Proper Clause. Holzer asserts that the Tenth Amendment forbids the federal government from exercising powers not expressly granted in the Constitution, although this view was rejected by the Supreme Court early in our nation’s history. In adopting a broad interpretation of implied congressional powers, Chief Justice John Marshall wrote in MCCULLOCH v. MARYLAND (1819), “Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word ‘expressly,’ and declares only that the powers ‘not delegated to the United States, nor prohibited to the states, are reserved to the states or to the people.” In applauding Thomas’ interpretation of the Tenth Amendment expressed in his dissent in U.S. TERM LIMITS, INC. v. THORNTON (1995), Holzer argues that “few [opinions] better reveal his sophisticated federalism jurisprudence” (p.36). In THORNTON, the majority held that the Tenth Amendment did not provide states the power to alter the qualifications of members of the national legislature, and that “the people” referred to in the Amendment are the people of the nation and not the people of a state. Holzer highlights Thomas’ assertion that “the people of the several States are the only true source of power” (p.37). Similarly, he heralds Thomas’ view, initially revealed in his concurrence in UNITED STATES v. LOPEZ (1995), that original intent requires federal commerce power to be limited to activities concerned with “selling, buying, and bartering, as well as transporting for these purposes” (LOPEZ, p.1643) and that commerce does not include agriculture, manufacturing, or mining. Thomas rejected the “substantial effects” test used in Commerce Clause cases since 1937, referring to it as a “rootless and malleable standard” in two later cases, UNITED STATES v. MORRISON (2000) and GONZALES v. RAICH (2005). In RAICH, he was also critical of the majority’s reference to the Necessary and Proper Clause in upholding federal authority under the Controlled Substances Act to prevent a state from permitting the medical use of marijuana. Holzer cites Thomas’ opinions in these cases, along with a few others, as evidence that he “fully understands and respects the federalism pillar of American constitutionalism” (p.50).

Chapter 5 examines Thomas’ record on several aspects of judicial review, including judicial restraint, ripeness, standing to sue, political questions, statutory interpretation, and stare decisis. What is especially interesting here is Holzer’s assertion of “Thomas’s deeply held view of [the] wisdom and necessity [of judicial restraint]” (p.53) and his “adherence to the principle of stare decisis” (p.66) despite evidence to the contrary. In his comprehensive study published in 2003, Graber (p.86) found that “approximately two-thirds of the separate opinions [Thomas] wrote from 1996 to 2000 in constitutional cases challenged stare decisis.” At the end of the chapter, Holzer compares Thomas with Scalia on stare decisis and originalism, concluding that while both [*565] are originalists, Thomas’ “jurisprudence follows the path of the Founders” (p.68) in cases involving the Bill of Rights and Fourteenth Amendment.

Chapters 6, 7, and 8 focus on the First Amendment, the Fourth-Fifth-Sixth-Eighth Amendments, and the Fourteenth Amendment, respectively. In examining Thomas’ jurisprudence under the First Amendment, Holzer focuses primarily on the Establishment Clause and freedom of speech, specifically political and commercial speech. After summarizing Thomas’ decision to join the majority in upholding Ohio’s school voucher program in ZELMAN v. SIMMONS-HARRIS (2002), he endorses the justice’s suggestion that the Establishment Clause never should have been incorporated to apply to states. Moreover, he cites Thomas’ concurrence in VAN ORDEN v. PERRY (2005) calling for establishing coercion as the appropriate standard for deciding Establishment cases, a change that would result in the overruling of long-standing precedents. His opinions excoriating campaign finance regulations as inappropriately limiting core political speech are cited as evidence that “the First Amendment has never had a stronger champion than Justice Thomas” (p.77). Similarly, Thomas’ call for commercial speech to be accorded the same constitutional protection as political speech is applauded. A significant part of Chapter 6 is devoted to Thomas’ opinion in a 2003 Virginia case involving cross burning, in which he emphasized that cross burning is conduct, not expression, and therefore should not have been analyzed under the First Amendment at all.

In discussing Thomas’ jurisprudence on aspects of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments, Holzer characterizes his views as being guided by originalism and historical analysis. For example, the author highlights Thomas’ reliance on principles from English common law in his majority opinion for a unanimous decision holding that the Fourth Amendment normally requires police officers to “knock and announce” their presence before entering a home to execute a search warrant (WILSON v. ARKANSAS, 1995). Interestingly, Graber (2003, p.76) cites a number of cases to illustrate that “when Justice Thomas uses originalist rhetoric in a majority opinion, he usually reaches more liberal conclusions,” but “he rarely relies on originalist rhetoric in majority or plurality opinions reaching conventionally conservative results.” Holzer gives considerable attention to Thomas’ dissent in the 2006 KELO v. CITY OF NEW LONDON case in which a five-member majority upheld a local development plan as consistent with the public use requirement in the Takings Clause of the Fifth Amendment. The dissent, Holzer argues, “is among the finest Thomas produced during his fifteen terms on the Court” (p.104) and represents “a thorough analysis of the Public Use clause – definitionally, historically, and logically – that demonstrates convincingly why the Court’s KELO ruling was unsupportable, as were the precedents it relied on in reaching its conclusion” (p.105). [*566]

One of Thomas’ most controversial dissents came during his first term, when he wrote in HUDSON v. MCMILLIAN (1992) that the Eighth Amendment’s Cruel and Unusual Punishments Clause does not apply to prison conditions.

Today’s expansion of the Cruel and Unusual Punishment Clause beyond all bounds of history and precedent is, I suspect, yet another manifestation of the pervasive view that the Federal Constitution must address all ills in our society. Abusive behavior by prison guards is deplorable conduct that properly evokes outrage and contempt. But that does not mean that it is invariably unconstitutional. The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.

In endorsing Thomas’ approach, Holzer argues that there is no historical evidence that the Framers included harsh prison conditions in their concerns about cruel and unusual punishments. As has been noted, however, “the concept of the prison as an institution for serving significant criminal sentences was essentially born in the nineteenth century – after the Eighth Amendment had been drafted and ratified” (Smith & Baugh, p. 91). Given that the Bill of Rights was written in 1789 and ratified in 1791, it is curious that Holzer points to the 1792 Delaware constitution, which contained language similar to the Eighth Amendment, but also noted that jails were to be constructed with proper regard for prisoners’ health, as “an example [the Founders] could have emulated if they were concerned with harsh prison conditions” (p.118).

In presenting Thomas’ jurisprudence on the Equal Protection Clause of the Fourteenth Amendment, Holzer quotes extensively from his opinions in major cases concerning school desegregation (MISSOURI v. JENKINS, 1995) and affirmative action (ADARAND CONSTRUCTORS, INC. v. PENA, 1995 and GRUTTER v. BOLLINGER, 2005). He endorses Thomas’ statements accusing federal judges of assuming that predominantly black institutions are inherently inferior (JENKINS) and characterizing affirmative action programs as manifestations of racial paternalism (ADARAND and GRUTTER). Moreover, Holzer contends that Thomas’ originalist approach supports his view that the Constitution and, by extension the Equal Protection Clause, are color-blind. Thomas criticizes the citation of social science evidence in Chief Justice Warren’s BROWN v. BOARD OF EDUCATION (1954) opinion, but he nevertheless defends that decision as compatible with originalism. Graber (2003, p.89) notes, however, that prominent scholars have not been able to reconcile BROWN with originalism, as they have concluded that “the persons responsible for the Fourteenth Amendment did not specifically intend to ban segregated schools.”

In his conclusion, Holzer reiterates his thesis that Thomas has shown a commitment to originalism, separation of powers, federalism, and the appropriate scope of judicial review in interpreting the Constitution and federal statutes, quoting again from cases discussed in previous chapters. He says that Thomas’ opinions “demonstrate a [*567] constitutional originalism, rooted in a deep, near-worshipful respect for the founding documents of this nation, and for those who gave them life” (p.151). But Graber (2003, pp.87-88) reaches a different conclusion after his own exhaustive analysis of Thomas’ majority/plurality, concurring, and dissenting opinions.

Originalism as practiced by Justice Thomas displays no virtues claimed for that approach to judicial decision-making. He is not particularly deferential to elected officials, and his legal conclusions do not differ substantially from those that might be reached by a conservative aspirationalist with a libertarian strain. . . .Justice Thomas the originalist in theory fails to reduce judicial discretion by refusing to be a consistent originalist in practice. History guides only some of his judicial opinions.

It is doubtful that this book will change many perceptions of Clarence Thomas’ tenure on the Supreme Court. Those who believe that his record has been unfairly maligned will take heart in Holzer’s writings, while Thomas’ critics likely will continue their criticism. Those who have been neutral about the justice are unlikely to be swayed one way or another. This is, however, a provocative book that will garner attention as scholars and other Court observers continue their search for “the real Clarence Thomas.”

REFERENCES:Danforth, John C. 1994. RESURRECTION: THE CONFIRMATION OF CLARENCE THOMAS. New York: Viking.